The Supreme Court’s decision to do away with the National Judicial Appointments Commission (NJAC) Bill in October 2015 created a rift between the Judiciary and the Executive. Subsequently in December 2015, the court’s Constitutional Bench left it to the Centre to consult the Chief Justice of India for drafting the new Memorandum of Procedure (MoP) for the appointment of judges to the higher Judiciary. In response to the apex court’s order, the Centre, last week, finalised the new MoP, according to a report in the Indian Express. The list of recommendations included in the MoP is wide-ranging. Suffice to say, the document marks the government’s desire to open up the closed Collegium system of judicial appointments to greater public scrutiny. Whether or not the Judiciary acts upon these recommendations is another question. Among the key recommendations made, the Centre has sought to include “merit and integrity” as “prime criteria” for the appointment of judges to the higher Judiciary, although seniority remains the paramount. Other recommendations include public documentation of the reasons why a more senior judge was overlooked for promotion, the establishment of a permanent secretariat to maintain records pertaining to appointments and complaints against the same and the selection of three distinguished lawyers and jurists as apex court judges. For promotion to the chief justice of a high court, the MoP has recommended an evaluation of judgments delivered by the judge under question in the last five years and the steps he/she took to improve judicial administration. Questions of “integrity” and “merit” remain vague without a detailed understanding of the MoP. Moreover, in a time when efficiency has become the name of the game, the Judiciary still remains beholden to the standards of seniority. Besides creating fissures between the Executive and the Judiciary, what the apex court’s decision to scrap the NJAC Bill did was to raise some fundamental points on the nature of Indian democracy.
Today’s column will hark back to an earlier article that was written to ascertain the historical context behind judicial appointments. “The NJAC was a constitutional body that was proposed to replace the present Collegium system of appointing judges before it was struck down. Under the Collegium system, the Chief Justice of India and a body of senior judges of the Supreme Court recommend the appointment and transfer of judges. Although this system finds no actual mention in the Indian Constitution, it was evolved through a series of Supreme Court judgements in the 1990s. Initially, the power of appointing judges rested with the government which was only required to consult with the Chief Justice of India on the appointment of judges to the higher judiciary. Before the onset of a Collegium system, “politically committed” judges or those beholden to the ruling establishment were appointed, undermining the Judiciary’s independence. However, in a landmark judgement in 1993, the apex court held that the independence of the Judiciary, which is part of the basic structure of the Constitution, was being compromised by the Executive’s primacy in key appointments. Although the Collegium system did bring greater independence to the Judiciary, the appointments made through it were not transparent, and often riddled with allegations of nepotism. The system of checks and balances plays a vital role in ensuring that none of the three branches of government: Executive, Legislature, and the Judiciary can limit the powers of the others. This way, no one branch can try and become too powerful. Except that, this conceptual clarity has not translated into reality. Moreover, critics argue that recurring activism by the judiciary in matters under the direct jurisdiction of the Executive has disturbed the delicate balance of powers enshrined in the Constitution,” this newspaper held in an earlier column. Suffice to say, the NJAC Bill was overwhelmingly passed by both Houses of the Parliament to reestablish the system of checks and balances and wrest some of its powers to appoint judges from the Judiciary. Despite the force of the recommendations made in the MoP, it is incumbent on the higher Judiciary to act and open itself up to a little more public scrutiny than usual. The apex court’s decision to strike down the entire NJAC bill disrespected not only the Executive arm of the government but the very will of the people. The ruling does come in conflict with the will of the people primarily because the NJAC Act was overwhelmingly passed by both Houses. The least it can do now is implement these recommendations and bring an end to the impasse on judicial appointments. Due to the stalemate over the NJAC and the subsequent procedure to draft the MoP, no judge has been appointed to the apex court in over a year.